Citation Nr: 0811860
Decision Date: 04/10/08 Archive Date: 04/23/08
DOCKET NO. 05-22 475 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for hepatitis C.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESSES AT HEARING ON APPEAL
Appellant and appellant's wife
ATTORNEY FOR THE BOARD
S. Lipstein, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to
November 1969.
This matter comes to the Board of Veterans' Appeals (Board)
from a February 2004 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO). A notice of
disagreement was filed in February 2005, a statement of the
case was issued in June 2005, and a substantive appeal was
received in June 2005. The veteran testified at a hearing
before the Board in March 2008.
During the course of this appeal, the veteran's claim for
entitlement to service connection for post-traumatic stress
disorder was granted.
FINDING OF FACT
Hepatitis C was not manifested during active service, nor is
current hepatitis C otherwise related to service.
CONCLUSION OF LAW
Hepatitis C was not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R.
§ 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before addressing the merits of the veteran's claim on
appeal, the Board is required to ensure that the VA's "duty
to notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38
C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112
(2004). The notification obligation in this case was
accomplished by way of a letter from the RO to the veteran
dated in October 2003. In March 2006, the veteran was
provided with notice of the types of evidence necessary to
establish a disability rating and the type of evidence
necessary to establish an effective date. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Despite initial
inadequate notice provided to the veteran, the Board finds no
prejudice to him in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the appellant has been prejudiced
thereby). In any event, since the Board concludes below that
the preponderance of the evidence is against entitlement to
service connection, any questions as to the appropriate
disability rating and effective date to be assigned are
rendered moot.
The RO also provided assistance to the veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case.
Initially, the Board notes that the evidence of record
contains the veteran's service medical records and post-
service VA medical records. The Board declines to obtain a
medical nexus opinion because no continuity of pertinent
symptomatology following service is shown nor is there any
medical suggestion that the veteran's current hepatitis C is
otherwise related to his service. In view of the fact that
the service medical records reflect that the veteran was
found to be clinically normal with no pertinent defects or
symptom complaints at the time of his separation from service
and there is no medical evidence reflecting any hepatitis C
for many years following service, the Board concludes that
the record as it stands includes sufficient competent
evidence to decide the claim and that no VA examination with
etiology opinion is necessary. 38 C.F.R. § 3.159(c)(4).
Indeed, any opinion relating current hepatitis C to service
would certainly be speculative. However, service connection
may not be based on a resort to pure speculation or even
remote possibility. See 38 C.F.R. § 3.102. The duty to
assist is not invoked where 'no reasonable possibility exists
that such assistance would aid in substantiating the claim.'
38 U.S.C.A. § 5103A(a)(2).
The veteran and his representative have not made the RO or
the Board aware of any additional evidence that needs to be
obtained in order to fairly decide this appeal, and have not
argued that any error or deficiency in the accomplishment of
the duty to notify and duty to assist has prejudiced him in
the adjudication of his appeal. Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that
duty to notify and duty to assist have been satisfied. For
all the foregoing reasons, the Board will proceed to the
merits of the veteran's appeal.
Criteria & Analysis
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service. 38
U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred
in service alone is not enough; there must be chronic
disability resulting from that injury. If there is no
showing of a resulting chronic condition during service, then
a showing of continuity of symptomatology after service is
required to support a finding of chronicity. 38 C.F.R. §
3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The veteran claims entitlement to service connection for
hepatitis C, which he asserts was incurred due to military
service. A service Report of Medical History dated in June
1969 reflects that the veteran checked the 'no' box for liver
disease (Yellow Jaundice) (Infectious Hepatitis). A service
Report of Medical Examination for separation purposes dated
in November 1969 reflects that the veteran was found to be
clinically normal with no pertinent defects or symptom
complaints at that time. A service Report of Medical History
for separation purposes dated in November 1969 reflects that
the veteran checked the 'no' box for jaundice. A service
Report of Medical History for National Guard enlistment
purposes dated in July 1972 reflects that the veteran checked
the 'no' box for jaundice or hepatitis.
VA outpatient treatment records dated in December 2001
reflect that the veteran was assessed with hepatitis C. In
February 2005, the veteran submitted his responses to a Risk
Factors For Hepatitis Questionnaire. The veteran reported
risk factors to include a possible blood transfusion in 1975
following a gunshot wound, as well as possible exposure to
contaminated blood or fluids during the previous 7 years as
part of his employment at the Dallas VA Hospital.
The veteran testified at a hearing before the Board in March
2008. The veteran testified that he was exposed to a lot of
blood as an infantry man in combat. He testified that VA
medical personnel at the VA Medical Center in Dallas, Texas
told him that his current hepatitis C could be related to
service. The Board notes that the veteran became very vague
and did not offer any specifics upon further questioning.
Despite the veteran's contentions otherwise, there is no
persuasive evidence to support a finding that his hepatitis C
is etiologically related to service or any incident therein.
The Board notes that the veteran reported a possible blood
transfusion in 1975 and possible exposure to contaminated
blood or fluids during the previous 7 years as part of his
employment as risk factors for hepatitis. However, these
risk factors all occurred post-service and thus do not
support the veteran's claim for service connection for
hepatitis C. Furthermore, on separation from service, the
veteran was found to be clinically normal with no pertinent
defects or symptom complaints. The clinically normal finding
on separation examination is significant in that it
demonstrates that trained military medical personnel were of
the opinion that no hepatitis C was present at that time.
The Board views the examination report as competent evidence
that there was no hepatitis C at that time. Also of
significance is the fact that at the time of his November
1969 examination, the veteran checked the 'no' box for
jaundice and did not report any complaints related to
hepatitis C. This suggests that the veteran himself did not
believe that he had any ongoing hepatitis C at that time.
The record does not show pertinent complaints or medical
treatment for a number of years after discharge from service.
A prolonged period without medical complaint can be
considered, along with other factors concerning the
claimant's health and medical treatment during and after
military service, as evidence of whether a disability was
incurred in service or whether an injury, if any, resulted in
any chronic or persistent disability which still exists
currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir.
2000). Thus, the Board finds that the lack of any evidence
of continuing hepatitis C for over 32 years between the
period of active duty and the evidence showing treatment for
hepatitis C is itself evidence which tends to show that no
hepatitis C was incurred as a result of service.
While acknowledging the veteran's belief that his hepatitis C
is due to service, it is well established that as a
layperson, the veteran is not considered capable of opining
as to the etiology of his disability. Espiritu v. Derwinski,
2 Vet. App. 492 (1992).
Thus, service connection for hepatitis C is not warranted.
This is a case where the preponderance of the evidence is
against the claim and the benefit of the doubt rule is
inapplicable. 38 U.S.C.A. § 5107(b); see also Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for hepatitis C is not warranted.
The appeal is denied.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs